–Oliver Wendell Holmes
As lawyers, it is often difficult for us to shut off that part of the brain that is trained to argue. We develop our positions, craft our strategy, and try to steer the discussion to stay “on point.” But mediation is not a trial or oral argument, it is a negotiation, i.e., a discussion between parties with the intent of producing an agreement. In any negotiation, the party with the best information gets the better deal. Information isn’t just financial statements, deposition transcripts or medical records. By paying attention to how a party presents their arguments or demands, you can gain significant insight about their motivation, interests and intentions. This is where “active listening” skills can serve you and your client well.
First, it should go without saying that it is impossible to listen when you are talking. In a joint session, don’t interrupt the other side. In a caucus, let the mediator finish what he has to say. Also, don’t formulate your response while the other person is speaking. You aren’t absorbing the other side’s message if you are crafting your own.
Second, convey to the other side that you really are listening to them. Provide the occasional verbal cue, and remember that non-verbal cues, such as the occasional nod, a polite smile or open body language, can be as important.
Third, take a moment before you respond. Even a brief pause can help defuse tension and make your response appear more thoughtful than reactionary.
Fourth, demonstrate that you really were listening by asking direct, neutral questions seeking clarification of a specific point, or, if possible, paraphrasing and repeating back what was just said, e.g., “If I understand you correctly,. . . .” Afterward, you can proceed with your position, response or counter-offer.
Applying active listening skills can help you gain a greater insight into your adversary’s position. When they feel that you are truly listening and paying attention, they are more likely to explain their interests, wants and needs in greater detail and provide you an understanding that has likely been lacking. When you identify what is really important to the other side (e.g., more visitation time in the parenting plan, an apology from your client, or establishing a payment plan or structured settlement) you can better construct a response that addresses everyone’s interests.